Torts Outline
Gardner Fall 2008
I. Selected Intentional Torts
a. The Concept of Intent
i. Cases
1. Garratt v. Dailey (kid pulls chair out from under someone) R: intent requires desire/purpose and knowledge
a. Knowledge is knowing with substantial certainty that something will happen
b. Children are not usually excused from liability for intentional torts
2. Williams v. Kearbey (insane person shot people at school) R: Insane are liable for their torts (irrational motive doesn’t negate intent)
ii. Intentional torts involve:
1. Act
2. With Intent
a. Intent must be linked with the purpose or desire to cause harmful or offensive contact or Substantial certainty the apprehension will result
3. With Causation
4. Harmful or Offensive Contact
b. Battery
i. Cases
1. Leichtman v. WLW Jacor Communications, Inc (host blew cigarette smoke in face of known antismoking advocate) R: Smoke is substantial to constitute offensive contact, which satisfies intent
2. Bohrmann v. Maine Yankee Atomic Power Co. (students blame employees for subjecting them to knowingly dangerous radiation) R: offensive contact is determined by the situation
ii. Battery if:
1. Intent to make harmful contact OR intent to make offensive contact OR substantial certainty the apprehension will result AND the H/O contact results
a. Intent doesn’t necessarily have to be to do harm
b. If you intend to do harm but it only results in offensive contact, it is still a battery
c. Affirmative defense for battery is consent
c. Assault
i. Cases
1. I de S et Ux v. W de S (drunk person struck the door after seeing the woman but didn’t injure her) R: the imminent apprehension is present even though there was no harm
2. Castro v. Local (plaintiff is offended by the words and actions of her employer) R: forward looking actions do not constitute imminent harm and assault will not be satisfied
ii. Assault: the intentional placing of another person in apprehension of imminent harmful or offensive contact
1. Act + intent + causation + imminent apprehensive H/O
2. Imminent apprehension means immediately at that time and does not mean fear or awareness
iii. Notes
1. Most courts require that the apprehension of a harmful or offensive contact be reasonable
2. Restatement claims that an actor is subject to liability to another for assault if he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and the other is thereby put in such imminent apprehension
d. Intent Revisited: Transferred Intent
i. Cases
1. Alteiri v. Colasso (kid threw a rock into the yard and hit the plaintiff) R: An act designed to cause bodily injury to a particular person is actionable as battery by that person and by another who is in fact so injured
ii. Transferred Intent
1. Applied to 5 intentional torts: battery, assault, false imprisonment, trespass to land, and trespass to chattel
2. An intent to commit any of these five torts against a particular victim constitutes intent against any other person, no matter how unforeseeable, who is instead or also a victim of one of these five torts
3. Two types of transferred intent:
a. Transferred intent from victim to victim
b. Transferred intent between intentional torts
i. Don’t always have to have assault with battery
4. battery is satisfied even when the injury done was not the one intended
iii. Mistake Doctrine
1. under the mistake doctrine, in intentional torts it is no defense that the defendant mistakes, even reasonably, the identity of the property or person he acts against
e. Infliction of Emotional Distress
i. Cases
1. Slocum v. Food Fair Stores of Florida, Inc (patron claims mental suffering or emotional distress after being verbally insulted in the store) R: the severe emotional distress must be so to a person of ordinary sensibilities
2. Rulon-Miller v. International Business Machines Corp. (manager fired by superior for relationship with another of a competing firm) R: the relationship between the defendant and plaintiff can impact the courts’ characterization of the defendant’s conduct as extreme and outrageous
3. Jones v. Clinton (Jones claims intentional infliction of emotional distress from sexual suggestions by Clinton) R: plaintiff’s actions and statements must portray someone who experienced emotional distress so severe in nature that no reasonable person could be expected to endure it
ii. Requires:
1. Act (extreme and outrageous and utterly intolerable conduct) + intent + causation + severe emotional distress (caused by the conduct)
iii. Notes
1. Extreme and outrageous conduct: liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community
2. Must show that the defendant intended to inflict emotional distress or knew or should have known that emotional distress was the likely result of his conduct
3. Recklessness is not a component of intent
4. Whether conduct is extreme or outrageous is determined by looking at the conduct at issue, the period of time over which the con
a reasonable mistake
4. Private Necessity
a. to constitute the defense of necessity, the defendant must have reasonably perceived an immediate need to appropriate the victim’s property to avoid a greater damage to property or life
b. A privilege which allows the defendant to interfere with the property interests of an innocent party in an effort to avoid a greater injury
i. Defendant must compensate the victim for the property
5. Public Necessity
a. An action is taken to protect the public good (allows an individual to harm private property to protect the public)
i. Defendant isn’t required to compensate the innocent victim
6. Consent
a. Can be express (saying or signing), implied (inferred from the circumstance), or an operation of law (protects emergency workers from lack of consent in Florida)
b. Consent can be invalidated if a person is a child, mentally troubled, drunk etc
c. Can’t consent to illegal activity
d. Can claim duress under consent, usually only if there is a physical threat of violence
II. Negligence
a. Overview
i. Cases
1. Pitre v. Employers Liability Assurance Corporation (kid struck in the head at a fair by a man playing a baseball game) R: failure to take precautions doesn’t constitute negligence unless the danger is both foreseeable and unreasonable
2. US Fidelity & Guaranty Company (death of a longshoreman when he entered an area that was off limits) R: use the HAND formula to determine if precautions are necessary
3. Peter Fimrite, Cables to Plug Fatal Bridge GAP (2 year old fell on golden gate bridge)
ii. Four Main Elements
1. Duty
a. Is there a duty
b. What is the extent of the duty (generally a duty of reasonable care)
2. Breach
a. When a person fails to follow the standard of conduct (reasonable person)
3. Causation of Fact
a. Breach must CAUSE the damages
b. But For test based on preponderance of the evidence
c. Is one the proximate cause of the damages (was it foreseeable)
4. Damages
a. You MUST have damages, but don’t have to be physical damages
iii. Defenses to Negligence
1. Contributory negligence
